IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20120000162 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show he retired with 20 years of qualifying service.

2.  The applicant states he was medically retired with 19 years, 11 months, and
8 days of service.

	a.  He was assigned to the Warrior Transition Unit (WTU) at Fort Jackson, SC, for about 2 1/2 years where he received medical treatment for his illness/
injury.

	b.  He was unaware of the provisions for Continuation on Active Duty (COAD) or Continuation on Active Reserve (COAR) status during his processing through the Physical Disability Evaluation System (PDES).

	c.  He was never briefed, counseled, or advised to apply for COAD/COAR in order to attain 20 years of service and he did not decline COAD/COAR.

	d.  When he learned about the program, he contacted officials for assistance, including the Physical Evaluation Board Liaison Officer (PEBLO); however, he was unable to get help.

3.  The applicant provides copies of his Physical Evaluation Board (PEB) proceedings and permanent disability retirement orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard from 29 June 1990 through 8 January 2003.

2.  He was appointed as a Reserve commissioned officer in the rank/grade of first lieutenant (1LT)/O-2 on 9 January 2003 and awarded area of concentration (AOC) 73A (Social Worker).  He was promoted to captain (CPT)/O-3 on
24 March 2005.

3.  The applicant's unit was mobilized in support of Operation Iraqi Freedom (OIF) and he was ordered to active duty on 2 June 2007.  He served in Iraq from 8 August to 9 September 2007.

4.  On 15 November 2007, he was assigned to the WTU at Fort Jackson.

5.  A DA Form 199 (PEB Proceedings) shows that an informal PEB convened on
2 March 2010.

   a.  The PEB evaluated the applicant's medical conditions, as follows:

* post traumatic stress disorder – 70 percent (%)
* myocardial infarction (listed as coronary artery disease) - 60%
* dementia due to other medical conditions - 50%
* degenerative arthritis - 40%
* migraine headaches - 30%

   b.  The PEB found the applicant physically unfit based on a combined rating of 100 % and recommended the applicant for permanent disability retirement.

	c.  Item 13 (Election of Soldier) shows that on 5 March 2010 the applicant concurred with the PEB's findings and recommendation and he waived a formal hearing.

	d.  Item 14 (Counselor's Statement) shows the applicant was informed of the findings and recommendation of the PEB, the results of the PEB were explained to him, and he was advised of his legal rights on 5 March 2010.

	e.  The PEB proceedings were approved on 8 March 2010.

6.  Orders 068-1314, issued by Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, dated 9 March 2010, released the applicant from assignment on 6 June 2010 because of permanent physical disability and placed him on the Retired Listed, effective 7 June 2010.  The orders show he was credited with 19 years, 11 months, and 8 days of service for basic pay.

7.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired on 6 June 2010 based on permanent physical disability and he was transferred to the U.S. Army Reserve Control Group (Retired).  He completed 3 years and 2 days of net active service this period; 1 year, 2 months, and 22 days of total prior active service; and 15 years, 8 months, and 14 days of total prior inactive service.

8.  A review of the applicant's military personnel records failed to reveal any evidence that he submitted a request for COAD or COAR.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 3 (Policies), paragraph 3-6, shows that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

	b.  Chapter 6 (COAD and COAR Status of Unfit Soldiers) prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or COAR, as an exception to policy.  It also shows in:

	 	(1)  paragraph 6-2 that the primary objective of this program is to conserve manpower by effective use of needed skills or experience.  A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation;

		(2)  paragraph 6-3 that COAD applies to officers on the active duty list, Regular Army enlisted Soldiers, and Soldiers in the Active Guard Reserve (AGR) requesting continuation as AGR;

		(3)  paragraph 6-6 that final PDES evaluation may be waived for retirement for length of service.  The Soldier must sign a waiver statement acknowledging that by foregoing final disability processing he or she is foregoing a potential disability retirement and the potential benefits related thereto (such as greater retired pay, or tax advantages, or certain other benefits pertaining); and

		(4)  paragraph 6-7 that to be considered for COAR, a Soldier must be basically stable or have a disability that is of slow progression according to accepted medical principles.  It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Solder or the Army.  For example, the Soldier must be physically capable of performing useful duty in a military environment without the environment adversely affecting his/her health and the disability must not require undue loss of time from duty for medical treatment.

DISCUSSION AND CONCLUSIONS:

1.  Records show the results of the PEB were explained to the applicant and he was advised of his legal rights.  The applicant concurred with the findings and recommendations of the PEB on 5 March 2010.  On 9 March 2010, orders were issued placing him on the retired list, effective 7 June 2010, with 19 years,
11 months, and 8 days service for basic pay.

2.  The evidence of record shows that the primary objective of the COAD/COAR program is to conserve manpower by the effective use of needed skills or experience and that there is no inherent or vested right to continuation.  It also shows the disability must not require undue loss of time from duty for medical treatment.

3.  The applicant was a Reserve Component officer who had been mobilized.  He was not on the active duty list or on active duty in an AGR status; therefore, he was not eligible for COAD consideration.

4.  The evidence of record shows the applicant was assigned to the WTU for a period of more than two and one-half years.  Thus, the applicant’s disabilities and ratings, along with the evidence of record, appear to confirm that he was not physically capable of performing useful duty in his AOC or in a military unit without the environment adversely affecting his health.

5.  There is no evidence the applicant waived final PDES evaluation for the purpose of retirement for length of service (and with less than 5 years of active duty service he would not have been eligible for).  In addition, the evidence of record shows a Soldier may not be retained solely to increase retirement or separation benefits.  Thus, the applicant provides insufficient evidence to show he was improperly denied COAD or COAR.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120000162



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ABCMR Record of Proceedings (cont)                                         AR20120000162



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